How Harper tied the courts in knots — and what Trudeau should do about it

The new Liberal government has a big job ahead of it: shredding the thick and tangled legal web the Conservatives spun to thwart a variety of Canadians who sought legal redress in the courts.

All too often, citizens who had suffered injustice at the hands of the state launched lawsuits, only to be slowly bled dry — their savings depleted — by the stalling tactics of federal lawyers. The feds have deep pockets. Under the Tories, there were few incentives for federal lawyers to work quickly to offer timely decisions.

Heaven knows how many aggrieved Canadians never had the resources to go to court. How many others prematurely abandoned the fight for their rights because they ran out of money to cover lengthy appeals?

The new government has suggested that this pattern — denying justice by delaying it — will stop. Prime Minister Justin Trudeau’s mandate letter to Justice Minister Jody Wilson-Raybould says one of her priorities must be a review of federal litigation strategy. The intent is to drop appeals in dubious cases that may be inconsistent with the government’s duty to uphold the Charter of Rights. The new government’s maiden throne speech on Friday may provide further details.

The countdown clock is ticking for many of the indigenous people who were in orphanages and residential schools in Newfoundland from 1949 to 1970. Many of them are now seniors. Some undoubtedly are in poor health. They are part of a class-action lawsuit launched in 2007.

If any Canadians deserve speedy redress, it’s these people. But you’d never know that by the way the Justice department under Harper handled the case.

Trudeau’s mandate letter to Wilson-Raybould suggests that shameful foot-dragging by government lawyers will no longer be part of the federal government’s litigation strategy.

There are scores of examples of government lawyers dragging their feet in an effort to outlast the plaintiffs, lawyers for the indigenous people recently told The Globe and Mail’s Sean Fine. The Harper government, for example, refused to allow old federal documents, including cabinet orders, to be used as evidence unless the plaintiffs could produce a witness to explain the documents.

How’s that supposed to work? Have you ever tried to subpoena a dead cabinet minister? Most of the authors of those orders are dead; those that aren’t probably could not recall anything more than what the documents say, lawyers for the plaintiffs argued. They recently won this legal point — but not until after a long legal battle ate up more time.

“This case is being litigated like a lawsuit between Canada and a bank,” said Kirk Baert, a lawyer for the plaintiffs. “Which means no-holds-barred — whoever’s got the most resources, just drag it out.”

This must seem terribly familiar to Abdullah Almalki, Ahmad El Maati and Muayyed Nureddin, the three Muslim Canadians who are suing the government for the part federal officials played in their arrests in Syria and subsequent detention and torture. The men were never charged with any crime. They were merely collateral damage in the terrorism scare after the 9/11 attacks.

A judicial inquiry, headed by former Supreme Court justice Frank Iacobucci, determined that information provided by the Canadian Security Intelligence Service led to their arrests in Damascus. But the inquiry did not have authority to order compensation for the men. So, they continue their fight in lawsuits that have dragged on now for years.

You would think their lawsuit could be fast-tracked by using the sworn testimony witnesses gave to the Iacobucci inquiry and his findings of fact as evidence in the court case. But government lawyers have objected. They insisted that the same witnesses should testify a second time.

At one point, lawyers for the trio tried to find out who told CSIS about alleged activities that made the men “terrorist suspects” in the first place. Federal lawyers objected.

Nice try, Mr. Harper. Federal Court Judge Richard Mosley last week shot down the Justice department’s attempt to apply the amendments retroactively. The judge’s ruling hinted that the amendments might be found unconstitutional even in future cases involving CSIS informants recruited after the identity protection came into effect.

Trudeau’s mandate letter to Wilson-Raybould suggests that shameful foot-dragging by government lawyers will no longer be part of the federal government’s litigation strategy.

The minister’s mandate goes even further. She’s been told to work with Heritage Minister Mélanie Joly on restoring a “modern Court Challenges Program.” The last version of this program was killed by the Harper government in 2006. It provided financial assistance to people and groups who had what looked like legitimate beefs with the government involving equality rights.

Program officials were independent and worked at arms’-length from the government. They looked for cases that raised important questions about rights and public policies so that the courts could render judgment and provide guidance on how the Charter should be interpreted in similar circumstances down the road.

Many of the earliest rights cases, including gender equality cases, might never have made it through the courts without the financial assistance of the Court Challenges Program. And we would all be the poorer for it.

Jeff Sallot is one of Canada’s most experienced and respected political writers. A graduate of the Kent State University journalism school, he shared a Pulitzer Prize with colleagues at The Akron Beacon-Journal for his eyewitness coverage of the massacre of four Kent State students by the Ohio National Guard during an anti-war demonstration. He worked for The Globe and Mail for more than three decades, much of the time as a political journalist based in Ottawa. He started his career in political journalism at The Toronto Star when Pierre Trudeau was prime minister. He taught journalism at Carleton University for seven years until he retired in 2014.

The views, opinions and positions expressed by all iPolitics columnists and contributors are the author’s alone. They do not inherently or expressly reflect the views, opinions and/or positions of iPolitics.

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Jeff Sallot founded Reportinglab.com in 2010. He taught at Carleton University from 2007 to 2013 after a long reporting career at The Globe and Mail and globeandmail.com. He’s been the Globe’s bureau chief in Moscow, Ottawa and Edmonton, and the lead political correspondent for the Globe’s website during federal elections. He’s reported from every corner of Canada, and from more than 30 foreign countries on five continents. Jeff also was part of a team at the Akron Beacon Journal that won a Pulitzer Prize for Journalism for its coverage of the 1970 Kent State University tragedy. He now makes frequent broadcast appearances as a commentator on journalism and political issues.